ML12079A300
| ML12079A300 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 03/19/2012 |
| From: | Matthew Smith, Woodall L NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 22069, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML12079A300 (56) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR GENERATION ) Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR )
OPERATIONS, INC. )
)
(Pilgrim Nuclear Generating Station) )
NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS PETITIONS FOR LEAVE TO INTERVENE AND MOTIONS TO REOPEN THE RECORD Maxwell C. Smith Susan Uttal Lauren Woodall Counsel for NRC Staff March 19, 2012
TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ...........................................................................................................iii INTRODUCTION .......................................................................................................................... 1 PROCEDURAL BACKGROUND .................................................................................................. 2 DISCUSSION ................................................................................................................................ 6 I. Standing ............................................................................................................................ 6 II. Petitioners Do Not Raise an Admissible Issue .................................................................. 6 A. The NRC Staff Complied with the Endangered Species Act ................................. 7
- 1. The NRC Staffs 2006 Biological Assessment Fulfilled Its Consultation Obligations Under Section 7 of the ESA ............................... 8
- 2. The NRC Staff Has Adequately Considered the Atlantic Sturgeon Under the ESA ......................................................................................... 13
- 3. The NRC Need Not Consider the River Herring to Comply with the ESA ......................................................................................................... 14
- 4. The Petition Does Not Provide Sufficient Facts to Show that the NRC Staff Incorrectly Determined that Renewing the Pilgrim Operating License Would Have No Impact on Any Listed Species or Critical Habitat ......................................................................................... 15 B. The NRC Complied with the Magnuson-Stevens Act .......................................... 18
- 1. The MSA and Implementing Regulations ................................................ 19
- 2. Petitioners Contention Does Not Meet the Standards in 10 C.F.R. § 2.309(f)(1)............................................................................. 21
- a. NRC Completed the EFH Assessment ........................................ 21
- b. NMFS Reasonably Determined to Consider EFH Mitigation Through the EPAs NPDES Process for Pilgrim Because EPA Has Authority to Implement Those Measures .............................. 23 C. The NRC Fully Complied With the National Environmental Policy Act................ 27
- 1. The FSEIS Contains the Information the Petitioners Allege is Missing ... 27
- 3. Petitioners Do Not Allege New and Significant Information ..................... 29
-ii-
- 4. The Alternatives Analysis Need Not Be Supplemented........................... 31 III. Requirements for the Admission of Non-Timely Filings and Contentions ....................... 32 A. Applicable Legal Standards ................................................................................. 32 B. Petitioners Do Not Meet the Late-Filing Standards of 10 C.F.R. § 2.309(c)........ 34
- 1. Petitioners Do Not Show Good Cause .................................................... 34
- 2. The Balance of the Other Factors Is Not Compelling .............................. 37 IV. The Petition Does Not Meet the Reopening Standards .................................................. 40 A. Timeliness ........................................................................................................... 41 B. Significance ......................................................................................................... 43 C. Materially Different Result ................................................................................... 44 D. Affidavit ................................................................................................................ 45 CONCLUSION ............................................................................................................................ 45
-iii-TABLE OF AUTHORITIES Page JUDICIAL DECISIONS American Rivers and Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004) ................................. 10 Idaho v. I.C.C., 35 F.3d 585 (D.C. Cir. 1994) .............................................................................. 10 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373 (1989) ............................. 30, 31 National Assn of Home Builders v. Defenders of Wildlife, 551 US 644 (2007) .......................... 28 Natural Resources Defense Council v.EPA, 859 F.2d 156 (1988) ............................................. 26 Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) ................................................ 10 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ......................................... 26 Water Keeper Alliance v. U.S. Dept. of Defense, 271 F.3d 21 (1st Cir. 2001)...................... 10, 11 ADMINISTRATIVE DECISIONS Commission AmerGen Energy Co., LLC. (Oyster Creek Nuclear Generating Station),
CLl-09-7, 69 NRC 235 (2009) ..............................................................................................passim AmerGen Energy Co., LLC. (Oyster Creek Nuclear Generating Station),
CLI-08-28, 68 NRC 658 (2008) ............................................................................................. 34, 40 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),
CLI-08-23, 68 NRC 461 (2008) ................................................................................................... 34 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station),
CLI-06-24, 64 NRC 111 (2006) ..................................................................................................... 7 Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2),
CLI-86-8, 23 NRC 241 (1986) ..................................................................................................... 39 Consumers Energy Co. (Palisades Nuclear Power Plant),
CLI-07-18, 65 NRC 399 (2007) ..................................................................................................... 6 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3),
CLI-09-05, 69 NRC 115 (2009) ....................................................................................... 33, 34, 41 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3),
CLI-05-24, 62 NRC 551 (2005) ............................................................................................passim
-iv-Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3),
CLI-01-24, 54 NRC 349 (2001) ..................................................................................................... 7 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),
CLI-99-11, 49 NRC 328 (1999) ................................................................................................... 17 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-06, 75 NRC __ (Mar. 8, 2012) (slip op.) ............................................ 3, 38 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-03, 75 NRC __ (Feb. 22, 2012) (slip op.) ................................................ 3 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __ (Feb. 9, 2012) (slip op.) .................................................. 3 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287 (2010) ................................................. 2 Fansteel, Inc. (Muskogee, Oklahoma Site),
CLI-03-13, 58 NRC 195 (2003) ..................................................................................................... 7 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station),
CLI-00-6, 51 NRC 193 (2000) ....................................................................................................... 7 Hydro Resources (P.O. Box 15910 Rio Rancho, NM 87174),
CLI-01-04, 53 NRC 31 (2001) ..................................................................................................... 30 Hydro Resources (P.O. Box 15910 Rio Rancho, NM 87174),
CLI-00-12, 52 NRC 1 (2000) ................................................................................................. 41, 42 Northern States Power Co. (Prairie Island Nuclear Generating Plant),
CLI-10-27, 72 NRC 481 (2010) ............................................................................................. 33, 34 Nuclear Management Co., LLC. (Palisades Nuclear Power Plant),
CLI-06-17, 63 NRC 727 (2006) ................................................................................................... 33 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),
CLI-06-03, 63 NRC 19 (2006) ..................................................................................................... 43 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation),
CLI-05-12, 61 NRC 345 (2005) ................................................................................................... 40 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),
CLI-11-08, 74 NRC __ (Sep. 27, 2011)(slip op.) ................................................................... 41, 43 State of New Jersey (Department of Law and Public Safety's Requests Dated October 8, 1993), CLI-93-25, 38 NRC 289 (1993) ...................................................................... 34 Tennessee Valley Authority (Watts Bar Nuclear Unit 2),
CLI-10-12, 71 NRC 319 (2010) ............................................................................................. 33, 39
-v-Atomic Safety and Licensing Board Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3),
LBP-82-117B, 16 NRC 2024 (1982) ........................................................................................... 37 Consolidated Edison Company (Indian Point Station, Unit No. 2),
LBP-82-1, 15 NRC 37 (1982) ...................................................................................................... 37 Consumers Power Co. (Midland Plant, Units 1 and 2)
LBP-82-63, 16 NRC 571 (1982) .................................................................................................. 39 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-11-18, 74 NRC __ (July 19, 2011) (slip op.) ................................................ 2 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131 (2007) .......................................................................... 2 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257 (2006) .......................................................................... 2 Entergy Nuclear Operations, Inc., (Indian Point, Units 2 & 3),
LBP-08-13, 68 NRC 43 (2008) ...................................................................................................... 6 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station), LBP-10-19, 72 NRC 529 (2010) ............................. 44 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568 (2006) ....................... 33, 34 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station), LBP-05-32, 62 NRC 813 (2005) ............................. 33 Georgia Inst. of Tech. (Georgia Tech Research Reactor),
LBP-95-6, 41 NRC 281 (1995) .................................................................................................... 17 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant),
LBP-06-10, 63 NRC 314 (2006) .................................................................................................. 17 Wisconsin Public Service Corporation (Kewaunee Nuclear Power Plant),
LBP-78-24, 8 NRC 78 (1978) ...................................................................................................... 37 Atomic Safety and Licensing Appeal Board Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-216, 8 AEC 13 (1974) ....................................................................................................... 15
-vi-Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2),
ALAB-515, 8 NRC 702 (1978) .................................................................................................... 22 REGULATIONS 10 C.F.R. § 2.309(c) ............................................................................................................passim 10 C.F.R. § 2.309(c)(1) ........................................................................................................ .32, 33 10 C.F.R. § 2.309(c)(1)(i) ............................................................................................................ 32 10 C.F.R. § 2.309(c)(1)(v) ........................................................................................................... 40 10 C.F.R. § 2.309(c)(1)(vii) ......................................................................................................... 40 10 C.F.R. § 2.309(c)(1)(viii) .................................................................................................. 39, 40 10 C.F.R. § 2.309(d) ..................................................................................................................... 6 10 C.F.R. § 2.309(e) ..................................................................................................................... 6 10 C.F.R. § 2.309(f) .................................................................................................................. 6, 7 10 C.F.R. § 2.309(f)(1) .......................................................................................................... 17, 40 10 C.F.R. § 2.309(f)(1)(iv) ....................................................................................................passim 10 C.F.R. § 2.309(f)(1)(v) .....................................................................................................passim 10 C.F.R. § 2.309(f)(1)(vi) ....................................................................................................passim 10 C.F.R. § 2.309(f)( 2) ........................................................................................................passim 10 C.F.R. § 2.309(f)(2)(iii) ........................................................................................................... 36 10 C.F.R. § 2.309(h)(1) ................................................................................................................. 1 10 C.F.R. § 2.323(c) ..................................................................................................................... 1 10 C.F.R. § 2.326.................................................................................................................. 40, 41 10 C.F.R. § 2.326(a)(1) ................................................................................................... 40, 41, 43 10 C.F.R. § 2.326(a)(2) ......................................................................................................... 40, 43 10 C.F.R. § 2.326(a)(3) ......................................................................................................... 40, 44 10 C.F.R. § 2.326(b) ............................................................................................................. 40, 45 10 C.F.R. § 2.326(d) ................................................................................................................... 32
-vii-10 C.F.R. § 51.10(c) ....................................................................................................... 22, 26, 28 10 C.F.R. § 51.20.......................................................................................................................... 9 40 C.F.R. § 122.6(a) ................................................................................................................... 26 50 C.F.R. § 402.01........................................................................................................................ 9 50 C.F.R. § 402.02........................................................................................................................ 9 50 C.F.R. § 402.12(a) ................................................................................................................... 9 50 C.F.R. § 402.12(b)(1) ............................................................................................................... 9 50 C.F.R. § 402.12(d) ............................................................................................................. 8, 14 50 C.F.R. § 402.12(f) .................................................................................................................. 16 50 C.F.R. § 402.12(j) ............................................................................................................ 10, 12 50 C.F.R. § 402.12(k)(2) ....................................................................................................... 12, 14 50 C.F.R. § 402.13(a) ............................................................................................................. 8, 12 50 C.F.R. § 402.14...................................................................................................................... 11 50 C.F.R. § 402.14(a) ..........................................................................................................passim 50 C.F.R. § 402.14(b) ................................................................................................................. 11 50 C.F.R. § 402.16........................................................................................................................ 5 50 C.F.R. § 402.16(d) ............................................................................................................. 8, 13 50 C.F.R. § 424.17...................................................................................................................... 14 50 C.F.R. Part 600 ...................................................................................................................... 19 50 C.F.R. § 600.905.................................................................................................................... 19 50 C.F.R. § 600.920(a)(1)-(3) ..................................................................................................... 19 50 C.F.R. § 600.920(b) ................................................................................................... 20, 22, 24 50 C.F.R. § 600.920(e) ......................................................................................................... 18, 22 50 C.F.R. § 600.920(e)(1)-(4) ..................................................................................................... 19 50 C.F.R. § 600.920(f)(1) ...................................................................................................... 19, 22
-viii-50 C.F.R. § 600.920(k) ............................................................................................................... 20 50 C.F.R. § 600.925(a) ......................................................................................................... 20, 24 STATUTES 5 U.S.C. § 558(c) ........................................................................................................................ 26 16 U.S.C. § 1536(a)(2).................................................................................................................. 8 16 U.S.C. § 1855(b)(2)................................................................................................................ 26 16 U.S.C. § 1855(b)(3).......................................................................................................... 18, 19 16 U.S.C. § 1855(b)(4)(A) ........................................................................................................... 20 STATE LAW 314 C.M.R § 3.09 ........................................................................................................................ 26 MISCELLANEOUS Endangered and Threatened Wildlife and Plants; Threatened and Endangered Status for Distinct Population Segments of Atlantic Sturgeon in the Northeast Region, 77 Fed. Reg. 5,880, 5,880 (Feb. 6, 2012) ....................................................................... 13, 29, 30 Interagency Cooperation - Endangered Species Act of 1973, 51 Fed. Reg. 19,926 (June 3, 1986) ....................................................................................................................... 10, 41 Listing Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List Alewife and Blueback Herring as Threatened Under the Endangered Species Act, 76 Fed. Reg. 67,652, 67,656 (Nov. 2, 2011) ................................................................................ 4 NMFS EPA Finding, available at http://sero.nmfs.noaa.gov/hcd/pdfs/efhdocs/20010525_NMFS_EPA_Findings.pdf ................... 22 NOAA lists five Atlantic sturgeon populations under Endangered Species Act, (Jan. 31, 2012) available at http://www.nero.noaa.gov/nero/hotnews/atlsturgeondps/ ............... 36 NOAAs Sighting Survey and Sighting Advisory available at http://www.nefsc.noaa.gov/psb/surveys ...................................................................................... 16 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 29 Regarding Pilgrim Nuclear Power Station Final Report -
Appendices, (Jul. 2007) .......................................................................................................passim
March 19, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR GENERATION ) Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR )
OPERATIONS, INC. )
)
(Pilgrim Nuclear Generating Station) )
NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS PETITIONS FOR LEAVE TO INTERVENE AND MOTIONS TO REOPEN THE RECORD INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(h)(1) and 2.323(c), the staff of the Nuclear Regulatory Commission ("NRC Staff" or Staff) files its answer to Jones River Watershed Association (JRWA) Petitions for Leave to Intervene and File New Contentions Under 10 C.F.R. § 2.309(a), (d) or in the alternative 10 C.F.R. § 2.309(e) and JRWA and Pilgrim Watch (PW)
(collectively Petitioners) Motion to Reopen under 10 C.F.R. § 2.326 and Request for a Hearing Under 10 C.F.R. § 2.309(a) and (d) (Petition).1 The Petition contends that the Staff failed to comply with several environmental statutes in its review of Entergy Generation Company and Entergy Nuclear Operations (Entergy or Applicant) application for license renewal for the Pilgrim Nuclear Generating Station (Pilgrim or PNPS). However, the Petitioners claims are not supported by law or fact. In addition, because they largely rest on complaints that could 1
Jones River Watershed Association Petitions for Leave to Intervene and File New Contentions Under 10 C.F.R. § 2.309(a), (d) or in the alternative 10 C.F.R. § 2.309(e) and Jones River Watershed Association and Pilgrim Watch Motion to Reopen under 10 C.F.R. § 2.326 and Request for a Hearing Under 10 C.F.R. § 2.309(a) and (d) in the above Captioned License Renewal Proceeding (March 8, 2012)
Agencywide Documents Access and Management System (ADAMS) Accession Nos. ML12068A282, ML12068A183) (Petition). Because JRWA and PW filed identical Petitions, the Staff will treat them as the same in this answer.
have been raised years ago, the Petitioners claims are untimely. Finally, as discussed below, the claims do not meet the standards for reopening the record.
PROCEDURAL BACKGROUND The NRC Staff has thoroughly discussed the procedural background of this case elsewhere and will only highlight the elements of this proceeding that are relevant to the instant Petition.2 Over five years ago, PW submitted a hearing request on Entergys application for license renewal for Pilgrim. The Atomic Safety and Licensing Board (Board) admitted two contentions - Contention 1, challenging Entergys aging management program for buried piping, and Contention 3, challenging Entergys severe accident mitigation alternatives analysis.3 On October 30, 2007, a Board majority granted a motion for summary disposition of Contention 3.4 On April 10, 2008, the Board held an evidentiary hearing on Contention 1, and shortly thereafter, on June 4, 2008, the Board formally closed the evidentiary record.5 On appeal, the Commission reversed the summary disposition of Contention 3 and remanded it to the Board for further proceedings as limited by the Commissions Order.6 On July 29, 2011, the Board issued a partial initial decision finding in favor of the Applicant on the remanded Contention 3.7 On appeal, the Commission affirmed the Boards decision on 2
NRC Staffs Answer to Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Requests for Hearing on New Contentions Relating to Fukushima Accident), at 2-5 (Oct.
3, 2011) (ADAMS Accession No. ML11276A191) (Staff Answer to Appeal of LBP-11-23).
3 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 348-49 (2006).
4 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131 (2007).
5 Memorandum and Order (Ruling on Pilgrim Watch Motions Regarding Testimony and Proposed Additional Evidence Relating to Pilgrim Watch Contention 1), at 3 (June 4, 2008) (ADAMS Accession No. ML081560375) (June 4, 2008, Order).
6 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 317 (2010).
7 See generally Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-11-18, 74 NRC __ (July 19, 2011) (slip op.).
remanded Contention 3.8 After the Commission remanded Contention 3, PW and the Commonwealth of Massachusetts filed several new contentions before the Board. The Board declined to admit any of those contentions, and the Commission has affirmed some of those rulings and others are still pending on appeal.9 During the adjudicatory portion of this proceeding, the NRC Staff completed its environmental review of the Pilgrim license renewal application. The Staff documented the results of that review in its July 2007 Final Supplemental Environmental Impact Statement for Pilgrim (Pilgrim FSEIS).10 As part of this review, the NRC Staff consulted with the National Marine Fisheries Service (NMFS) under both the Endangered Species Act (ESA) and the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The Pilgrim FSEIS includes the documentation reflecting those consultations.11 In 2006, the NRC contacted NMFS for information regarding protected species under the ESA and for information regarding Essential Fish Habitat (EFH) under the MSA.12 In June of that year, NMFS responded with the requested information.13 In light of that information, the NRC Staff prepared a biological assessment and an EFH Assessment. The biological 8
Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __ (Feb. 9, 2012) (slip op.).
9 Staff Answer to Appeal of LBP-11-23 at 3-5; Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-03, 75 NRC __ (Feb. 22, 2012) (slip op.)
(ADAMS Accession No. ML12053A104); Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-06, 75 NRC __ (Mar. 8, 2012) (slip op.); NRC Staffs Answer to Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Request for Hearing on a New Contention Relating to Fukushima Accident), at 3-4 (Feb.6, 2012).
10 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 29 Regarding Pilgrim Nuclear Power Station Final Report - Appendices, (Jul. 2007)
(ADAMS Accession Number ML071990027) (Pilgrim FSEIS).
11 Id. at App. E.
12 Id. at E-15. Although the NRC must also coordinate with the Fish and Wildlife Service under the ESA as well, that agency determined that the license renewal for Pilgrim would not likely adversely affect species under its jurisdiction and found further consultation was not required under the ESA. Id. at E-9.
13 Id. at E-15 to E-18.
assessment determined that the proposed action would have no effect on any of the 10 Federally listed species in Pilgrims vicinity.14 On December 8, 2006, the NRC Staff sent a letter to NMFS describing the results of the biological assessment.15 To date, the NRC has not received a reply letter from NMFS objecting to the NRCs biological assessment. Under the MSA, the NRC Staff prepared an assessment of the EFH near Pilgrim. The NRC Staff submitted that assessment to NMFS.16 On January 23, 2007, NMFS sent a letter to the NRC Staff that concurred with the Staffs findings and conclud[ed] the EFH consultation under the MSA.17 The NRC published the EFH Assessment for Pilgrim in the FSEIS.18 On November 2, 2011, NMFS published a Federal Register notice designating the alewife and blueback herrings, collectively river herring, as a candidate species for inclusion on the List of Endangered and Threatened Wildlife in response to a petition from the Natural Resources Defense Council.19 NMFS intends to decide whether to include the river herring as a proposed species by August 5, 2012.20 Although river herring may swim near Pilgrim, the parties agree that their status as a candidate species compels no further action from the NRC.21 14 Id. at E-38.
15 Id.
16 Id.
17 Id. at E-45.
18 Id. at E-38, E-79.
19 Listing Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List Alewife and Blueback Herring as Threatened Under the Endangered Species Act, 76 Fed. Reg. 67,652, 67,656 (Nov. 2, 2011).
20 Id.
21 Petition at 26 (Although not a mandatory §7 consultation, Entergy and the NRC should seek the expert advice of NMFS because Entergys own data shows river herring are the third most impinged species at [Pilgrim.]).
On February 6, 2012, NMFS published a Federal Register notice that announced placement of the population of the Atlantic sturgeon in the Gulf of Maine on the List of Endangered and Threatened Wildlife.22 In contrast to a candidate species classification, a threatened species classification may trigger consultation requirements under the ESA.23 Accordingly, the NRC prepared a supplement to its biological assessment for Pilgrim considering the Atlantic sturgeon.24 The supplement concluded that the proposed license renewal of Pilgrim will have no effect on the Atlantic sturgeon.25 The Staff forwarded the biological assessment to NMFS on February 29, 2012.26 Finally, on March 8, 2012, JRWA and PW filed the instant Petition. The Petition not only challenges NRCs recent supplement to the biological assessment for Pilgrim, but also brings challenges to the Staffs initial review under the ESA and MSA, completed almost five years ago. As discussed below, Petitioners have not offered a legally sufficient excuse for their five-year-delay. Moreover, all of the claims in the Petition are based on an incorrect reading of the law, lack an adequate factual basis, and are not material to this proceeding. These claims would not be admissible if timely filed during this proceeding and certainly do not meet the Commissions high standard for reopening a closed record.27 22 Endangered and Threatened Wildlife and Plants; Threatened and Endangered Status for Distinct Population Segments of Atlantic Sturgeon in the Northeast Region, 77 Fed. Reg. 5,880, 5,911 (Feb. 6, 2012).
23 50 C.F.R. § 402.16.
24 Request for Concurrence on Determination of Effects Concerning Atlantic Sturgeon at Pilgrim Nuclear Power Station, Enclosure, (Feb. 29, 2012) (ADAMS Accession No. ML12047A119) (Pilgrim Supplemental BA).
25 Id., Enclosure at 3.
26 Id.
27 The Petitioners filed a Correction and Supplement to their Petition on March 15, 2012.
Correction and Supplement to: Jones River Watershed Association Petitions for Leave to Intervene and File New Contentions Under 10 C.F.R. § 2.309(a), (d) or in the alternative 10 C.F.R. § 2.309(e) and Jones River Watershed Association and Pilgrim Watch Motion to Reopen under 10 C.F.R. § 2.326 and Request for a Hearing Under 10 C.F.R. § 2.309(a) and (d), Originally Filed on March 8, 2012 in the above
DISCUSSION I. Standing An organization, such as JRWA, may establish representational standing to intervene if it identifies a member of the organization by name and address who would qualify for standing, shows that the member has authorized the organization to represent his or her interests, and demonstrates that the interest the organization seeks to protect is germane to its own purposes.28 In license renewal proceedings, standing is presumed . . . if the petitioner lives within 50 miles of the nuclear power reactor.29 At least one named member of JRWA has provided an affidavit that establishes that she lives within 50 miles of Pilgrim, authorizes JRWA to represent her in this proceeding, and raises concerns that are germane to JRWAs purposes.30 Therefore, JRWA has established standing under 10 C.F.R. § 2.309(d).31 PW has already established standing to participate in the proceeding.
II. Petitioners Do Not Raise an Admissible Issue First, to be admitted, the claims in the Petition must meet the general admissibility requirements at 10 C.F.R. § 2.309(f). That section requires the Petitioners to demonstrate that their contention has a legal and factual basis, is within the proceedings scope, and raises a Captioned License Renewal Proceeding (March 15, 2012) (ADAMS Accession No. ML12075A029). The Staff will file a response to that document separately.
28 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007).
29 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008).
30 Petition at 41.
31 The Petitioners state that they alternatively move for discretionary intervention under 10 C.F.R. § 2.309(e) if the decision maker should find either Petitioner has not established standing to intervene as of right. Petition at 54. The NRC's regulations provide for discretionary intervention when at least one admissible contention has been admitted. 10 C.F.R. § 2.309(e). Because the Petitioners have not provided an admissible contention, they have not met the requirements for discretionary intervention. In any event, because the Petitioners meet the normal standing requirements in 10 C.F.R. § 2.309(d), there is no reason to consider discretionary intervention.
material issue.32 The legal requirements governing the admissibility of contentions are well-established and set forth in 10 C.F.R. § 2.309(f) of the Commissions Rules of Practice. The requirements governing the admissibility of contentions are strict by design.33 Thus, they have been strictly applied in NRC adjudications, including license renewal proceedings.34 The Commission has explained, [m]ere notice pleading is insufficient under these standards.35
[B]are assertions and speculation [are] not enough to trigger an adversary hearing . . ..36 Therefore, [a] petitioners issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, [or] no substantive affidavits.37 A. The NRC Staff Complied with the Endangered Species Act The Petition claims that the NRC cannot legally renew the Pilgrim operating license until the agency fully completes the section 7 consultation process under the ESA.38 But, as discussed below, the NRC Staff has met all of the consultation requirements of the ESA. The NMFSs regulations implementing the ESA do not require any further consultation on the NRC Staffs initial biological assessment (BA) because that document found that the proposed 32 The Staff discussed contention admissibility at length in the NRC Staffs Answer in Opposition to Pilgrim Watch Request for Hearing on New Contention (January 7, 2011) (ADAMS Accession No. ML110070837), and NRC Staffs Answer in Opposition to Pilgrim Watchs January 20, 2011 Amended Contention (February 14, 2011) (ADAMS Accession No. ML110450664), and hereby incorporates those discussions and arguments by reference.
33 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).
34 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).
35 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).
36 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000).
37 Fansteel, Inc., CLI-03-13, 58 NRC at 203 (quoting Oyster Creek, CLI-00-5, 51 NRC at 207).
38 Petition at 6-11, 17-22, 24-25, 26, 27-28, 30, 31.
action would have no effect on any listed species.39 Likewise, because the NRCs supplemental BA found that the proposed license renewal of Pilgrim will have no effect on the Atlantic sturgeon,40 NMFS regulations do not require the NRC to initiate formal consultation for that species.41 Moreover, the Staff and Petitioners agree that NMFSs classification of the river herring as a candidate species did not place any legal obligations on the NRC.42 Finally, the Petitioners have not submitted sufficient evidence to demonstrate that the NRCs initial or supplemental BA inadequately considered impacts on listed species.
- 1. The NRC Staffs 2006 Biological Assessment Fulfilled its Consultation Obligations under Section 7 of the ESA The Petition alleges that the ESA § 7 consultation process is incomplete and [u]ntil the
§ 7 process is complete, the NRC cannot meet its obligation to insure that the relicensing will not jeopardize listed species or critical habitat.43 This claim rests on a fundamental misstatement of the ESA and its implementing regulations.
Section 7 of the ESA states, Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species . . ..44 39 Pilgrim FSEIS at E-38; see 50 C.F.R. § 402.14(a) (Each Federal agency shall review at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made formal consultation is required . . ..) (emphasis added).
40 Supplemental BA, Enclosure at 3.
41 50 C.F.R. § 402.16(d) (Reinitiation of formal consultation is required [i]f a new species is listed or critical habitat is designated that may be affected by the identified action.) (emphasis added). Informal consultation is an optional process. 50 C.F.R. § 402.13(a).
42 See Petition at 26; 50 C.F.R. § 402.12(d) (stating candidate species have no legal status and are accorded no protection under the ESA).
43 Petition at 24-25.
44 16 U.S.C. § 1536(a)(2).
NMFS has promulgated regulations that govern the ESA consultation process.45 Each Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required.46 NMFSs regulations require Federal agencies to prepare a BA for all major federal actions, such as license renewal.47 A BA is used in determining whether formal consultation or a conference is required.48 The NRC Staff prepared a BA that concluded that renewing the Pilgrim operating license would have no effect on any listed species.49 The NRC relied on its BA to determine that the ESA did not require formal consultation.50 Because the NRC determined that the action would have no effect on any listed species, the NRC fully met its obligations under the ESA without beginning consultation. As a result, the Petitioners claim that the ESA section 7 consultation process is incomplete lacks any basis in law or fact.51 There is no reason to delay the Pilgrim license renewal proceedings to complete a process the agency never had an obligation to start.
Federal precedent supports the view that the ESA does not require formal consultation when the action agency determines that its action will have no effect on listed species or critical habitat. As, the First Circuit noted, the preparation of a biological assessment does not 45 50 C.F.R. § 402.01 et seq.
46 50 C.F.R. § 402.14(a).
47 Federal agencies must prepare a BA for Federal actions that are major construction activities. 50 C.F.R. § 402.12(b)(1). The Services regulations indicate that a Major construction activity is a construction project (or other undertaking having similar physical impacts) which is a major Federal action significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act. 50 C.F.R. § 402.02. Under NRC regulations, a license renewal is such a major Federal action significantly affecting the quality of the human environment. 10 C.F.R. § 51.20.
48 50 C.F.R. § 402.12(a).
49 Pilgrim FSEIS at E-38.
50 50 C.F.R. § 402.14(a).
51 Petition at 25.
automatically push the parties into formal consultation, but rather, formal consultation follows only if a biological assessment shows that the action may affect listed species or critical habitat. 52 Likewise, the Ninth Circuit has stated, Thus, if the agency determines that a particular action will have no effect on an endangered or threatened species, the consultation requirements are not triggered.53 Similarly, the Statement of Considerations for NMFSs ESA regulations explains, These regulations require Federal agencies to review their actions to determine whether they may affect listed species or critical habitat. Formal consultation procedures must be initiated if such a situation exists . . ..54 Thus, Federal case law and the Statement of Considerations explaining the regulations support the NRC Staffs legal position.
Nonetheless, Petitioners argue that the ESA consultation process is incomplete
[w]ithout NMFS[s] concurrence with the 2006 BA.55 The Petitioners note that the regulations state, If the BA indicates that there are no listed species or critical habitat present that are likely to be adversely affected by the action and the Director concurs as specified in paragraph (j) of this section, then formal consultation is not required.56 Paragraph (j) indicates that the concurrence must be in writing.57 52 Water Keeper Alliance v. U.S. Dept. of Defense, 271 F.3d 21, 31-32 (1st Cir. 2001); see also American Rivers and Idaho Rivers United, 372 F.3d 413, 415 (D.C. Cir. 2004); Idaho v. I.C.C., 35 F.3d 585, 597 (D.C. Cir. 1994).
53 Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 n.8 (9th Cir. 1994).
54 Interagency Cooperation - Endangered Species Act of 1973, 51 Fed. Reg. 19,926, 19,949 (June 3, 1986).
55 Petition at 27. Petitioners also assert that the NRC can only take federal action after the formal consultation process is complete and the agency determines whether and in what manner to proceed with the action in light of its section 7 obligations and [NMFSs] biological opinion. Petition at 15 (citing 50 C.F.R. § 402.15(a)). But, this regulation only applies when NMFS prepares a biological opinion after completing the formal consultation process. As discussed above, the regulations did not require that process to begin in this case.
56 Petition at 8 (quotation omitted).
57 50 C.F.R. § 402.12(j).
Petitioners argument rests on a fundamental misreading of the regulations. NMFSs regulations indicate that the written concurrence requirement is an exception to the normal rule that an agency must begin formal consultation when it finds that the action may affect listed species or critical habitat.58 As mentioned above, each Federal agency must determine whether any action may affect listed species or critical habitat.59 The regulation continues, If such a determination is made, formal consultation is required, except as noted in paragraph (b) of this section.60 Paragraph (b) of 50 C.F.R. § 402.14 provides that formal consultation need not be initiated if the BA or optional informal consultation leads to a finding that the proposed action is not likely to adversely affect any listed species or critical habitat and NMFS agrees in writing.61 Accordingly, under paragraph (b), even when an action may affect a listed species or critical habitat and formal consultation would normally be required, the agency is excused from that consultation if it finds that the action would be not likely to adversely affect such species or habitat with written concurrence from NMFS.
The NRC determined that renewing the Pilgrim license would have no effect on any listed species or critical habitat.62 Consequently, 50 C.F.R. § 402.14(a) did not require the NRC to begin formal consultation under section 7 of the ESA. Therefore, it is unnecessary for the NRC to take advantage of the exception to the formal consultation requirement in 50 C.F.R. § 402.14(b), which would require the NRC to wait for a written concurrence from NMFS.
Next, Petitioners contend that the NRC admits by its February 29, 2012 letter to NMFS seeking concurrence on the 2006 BA and the supplemental BA that the ESA § 7 process is 58 50 C.F.R. § 402.14; see, e.g., Water Keeper Alliance, 271 F.3d at 31-32 (noting that if an agency finds that the proposed action will not affect listed species or critical habitat, formal consultation is not required).
59 50 C.F.R. § 402.14(a).
60 Id.
61 50 C.F.R. § 402.14(b).
62 Pilgrim FSEIS at E-38.
incomplete.63 But, the February 29, 2012 letter did not acknowledge ongoing formal consultation or request initiation of such consultation. Rather, the letter requested NMFS concurrence on the NRCs 2006 biological assessment per 50 CFR 402.12(j).64 That provision requires NMFS to respond in writing to a completed BA within 30 days and state whether NMFS agrees or disagrees with the determinations therein.65 If NMFS disagreed with the NRCs determination of no effects, then NMFS could have requested formal consultation under its own regulations.66 At most, therefore, the NRC correspondence with NMFS constituted informal consultation, which the regulations indicate is an optional process.67 Thus, the NRCs February 29, 2012 letter did not maintain that formal consultation was ongoing. Rather, it reflected the agencys best efforts to comply with NMFS regulations, which require the NRC to submit its completed BA to NMFS regardless of its findings and indicate that NMFS will respond in writing.
Finally, Petitioners assert that the 2006 BA did not make a determination on the potential effects of relicensing on critical habitat for the Northern right whale.68 However, the 2006 BA did address the critical habitat for the North Atlantic right whale.69 The NRC Staff determined, The critical habitat for the right whale in Cape Cod Bay begins approximately 3
[miles] east of [Pilgrim] and extends south and east to the coastline and north beyond the tip of Cape Cod.70 Because, Pilgrims thermal discharge plume only impacts 216 acres, or a little over a third of a square mile, Pilgrims operation cannot impact the North Atlantic right whales 63 Petition at 30.
64 Pilgrim Supplemental BA at 1.
65 50 C.F.R. § 402.12(j).
66 50 C.F.R. §§ 402.12(k)(2), 402.14(a).
67 50 C.F.R. § 402.13(a).
68 Petition at 18.
69 Pilgrim FSEIS at E-69.
70 Id.
critical habitat.71 Petitioners do not provide any information to the contrary. As a result, the Staffs conclusion that operation of Pilgrim would have no effect on the North Atlantic right whale encompasses a finding that the federal action will also not affect the critical habitat.72 Consequently, the Petitioners claim that the NRC did not adequately comply with the ESA in its 2006 BA is not based on law or facts. Moreover, the Petitioners seek to require the agency to conduct a consultation that is simply not required. Therefore the claim is inadmissible because it lacks an adequate basis and is immaterial.73
- 2. The NRC Staff Has Adequately Considered the Atlantic Sturgeon Under the ESA Petitioners also suggest that the consultation process is incomplete for the . . . Atlantic sturgeon.74 As discussed above, NMFS noticed the addition of the Atlantic sturgeon population near Pilgrim to the list of threatened species on February 6, 2012.75 Agencies must reinitiate formal consultation with NMFS when a new species is listed or critical habitat designated that may be affected by the identified action.76 Accordingly, the NRC Staff prepared a supplemental BA to determine if the Pilgrim license renewal would affect the Atlantic sturgeon. The Supplemental BA found that the proposed license renewal of Pilgrim would have no effect on the Atlantic sturgeon.77 Because renewing the Pilgrim operating license will not affect the Atlantic sturgeon, the NMFSs regulations do not require the NRC to begin formal consultation.78 71 Pilgrim FSEIS, Volume 1, at 4-35 (ADAMS Accession No. ML071990020).
72 Id. at E-70.
73 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi).
74 Petition at 24.
75 77 Fed. Reg. at 5,880.
76 50 C.F.R. § 402.16(d).
77 Pilgrim Supplemental BA at 2.
78 50 C.F.R. § 402.16(d).
If NMFS disagrees with the NRC Staffs determination, it can request formal consultation under 50 C.F.R. §§ 402.12(k)(2) and 402.14(a). Therefore, the Petitioners claim that the NRC must complete formal consultation with the service on the Atlantic sturgeon lacks an adequate basis in law or fact. Moreover, the claim is not material to this proceeding because it attempts to compel the agency to complete a process the law does not require it to begin. As a result, this claim does not support an admissible contention under 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi).
- 3. The NRC Need Not Consider the River Herring to Comply with the ESA Next, Petitioners claim that impacts to river herring, a candidate species under the ESA, and the third most frequently impinged species at PNPS, should be addressed pursuant to
§ 7, prior to relicensing as required by NMFS regulations and policy.79 However, Petitioners concede that consulting on candidate species is not a mandatory § 7 consultation.80 Petitioners are correct. NMFS regulations explicitly state that candidate species have no legal status and are afforded no protection under the ESA.81 Therefore, the NRC has no legal obligation to consider river herring under the ESA consultation process. Petitioners suggest that NMFS policy requires the NRC to consult on candidate species such as the river herring.82 But, the very policy document cited by Petitioners notes that although NMFS may propose ways to mitigate impacts on candidate species, federal agencies are not legally required to implement those recommendations.83 79 Petition at 24-25. Petitioners claim that NMFS could add the river herring to the list of threatened or endangered species before June 8, 2012. Id. at 9. But, before adding the river herring to one of those lists, NMFS would need to add the river herring to the list of proposed species for further consideration, a process that can take over a year. 50 C.F.R. § 424.17.
80 Petition at 26.
81 50 C.F.R. § 402.12(d).
82 Petition at 24-25.
83 Id. at 10 & n.5 (citing Endangered Species Consultation Handbook, at 3-1, 6-1 (March 1998)).
Petitioners advance several policy reasons why they believe the NRC should consider the river herring under the ESA.84 But, under well established NRC precedent, a contention that rests on a petitioners generalized views about what policy should be is not admissible.85 Consequently, Petitioners have not provided a sufficient factual or legal basis to demonstrate that the NRC has ignored its consultation obligations under section 7 of the ESA with respect to the river herring.86 Additionally, because the Petition indicates that the NRC has no legal obligations with respect to candidate species, this portion of the claim does not raise a material dispute.87
- 4. The Petition Does Not Provide Sufficient Facts to Show that the NRC Staff Incorrectly Determined that Renewing the Pilgrim Operating License Would Have No Impact on Any Listed Species or Critical Habitat Although only cursorily discussed in the Petition, the Petitioners also submitted an affidavit from Mr. Alex Mansfield which they allege demonstrates a lack of scientific credibility in the BA.88 However, the Mansfield Affidavit does not contain sufficient information to demonstrate that the Staffs conclusions in the 2006 and supplemental BA are incorrect.
First, the Mansfield Affidavit challenges the Staffs conclusion that no whales have been observed in the shallow waters off [Pilgrim] or in the intake and discharge areas.89 Mr.
Mansfield relies on a sighting survey that indicates some whales have been observed near Pilgrim from 2005 to the present day and suggests that the NRC Staff should have considered 84 Id. at 20-23, 26.
85 E.g. Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-216, 8 AEC 13, 20-21 & n.33 (1974).
86 10 C.F.R. § 2.309(f)(v), (vi).
87 10 C.F.R. § 2.309(f)(iv), (vi).
88 Petition at 20-21 (citing Affidavit of Alex Mansfield, ¶ 10-20 (Mar. 8, 2012) (ADAMS Accession No. ML12068A182) (Mansfield Affidavit)).
89 Mansfield Affidavit at 3 (citing Pilgrim FSEIS at 2-85).
this information.90 But, NMFSs regulations do not require the NRC to consider sighting surveys in its BAs. Rather, the regulations only require the NRC to consider the views of recognized experts and scientific literature.91 Moreover, the information that Mr. Mansfield cites does not appear to be sufficiently rigorous, since it suggests that on March 7, 2012, an observer saw a group of two right whales several miles inland.92 Next, Mr. Mansfield claims that the NRC Staff should have considered NMFSs targeted population increases for North Atlantic Right Whales.93 Again, the NMFS regulations do not require Federal agencies to consider population growth goals in BAs.94 In addition, Mr. Mansfield notes that the GEIS indicates that several sea turtles are present in Cape Code Bay and have been stranded on some beaches.95 But, this information did not show that any were stranded at Pilgrim. As a result, this claim does not undercut the Staffs finding of no effect for listed turtles. In addition, Mr. Mansfields claims that the NRC should address how climate change may impact migratory ranges for listed species is merely speculation that unspecified levels of climate change could affect migratory ranges, which might cause listed species to frequent Pilgrims vicinity, which may conceivably lead to some unspecified impact on those species. 96 Such speculation cannot form the basis 90 Id. at 5-7 (citing NOAAs Sighting Survey and Sighting Advisory available at http://www.nefsc.noaa.gov/psb/surveys/ (NOAA Survey)).
91 50 C.F.R. § 402.12(f).
92 NOAA Survey, Entry ID # 15175 (March 7, 2012).
93 Mansfield Affidavit at 7.
94 50 C.F.R. § 402.12(f).
95 Mansfield Affidavit at 8 (citing Pilgrim FSEIS at 2-84).
96 Id. at 8 (Mid-term changes (i.e. 20 years) to water temperatures may result in the northward expansion of many migratory species ranges.).
for an admissible contention.97 The remainder of Mr. Mansfields claims either relate to candidate or unlisted species, which the agency need not address under the ESA.98 Finally, even if the information Mr. Mansfield cited were reliable and relevant, he does not explain how it is contrary the NRC Staffs finding that the proposed action will not affect any listed species or critical habitat. When a contention seeks to connect a set of facts with a specific result and that result is not self-evident, expert analysis is needed to bridge the gap.99 As the Board in Georgia Tech recognized, it is the petitioner who is obligated to provide the analyses and expert opinion showing why its bases support its contention.100 Mr. Mansfield and the Petitioners have not shown, or attempted to show, how the information they provide demonstrates that Pilgrim could have an impact on listed species. At most, the information indicates that some species have been sighted near Pilgrim or may be there at some time in the future. The information does not suggest that Pilgrims operation will impact any listed species, let alone describe what that impact might be. As a result, the factual information provided by the Petitioners does not constitute a sufficient basis for their contention or support a material dispute with the Staffs analysis.101 Therefore, none of Petitioners ESA claims support an admissible contention under 10 C.F.R. § 2.309(f)(1). As discussed above, they are not supported by a correct reading of 97 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999) (stating that the Commissions regulations prevent admission of contentions based on little more than speculation).
98 See supra at section II.A.3. Mr. Mansfield also claims that the GEIS indicates that prey species for several listed whales may be impacted by Pilgrims continued operation. Mansfield Affidavit at 11-12.
However, Mr. Mansfield cites the Pilgrim FSEIS for this claim, which has been available for over five years. Id. Moreover, Mr. Mansfield does not demonstrate or allege how these impacts on prey species will be sufficient to affect the listed species.
99 E.g., Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 352 (2006),
affd CLI-06-17, 63 NRC 727 (2006).
100 Georgia Inst. of Tech. (Georgia Tech Research Reactor), LBP-95-6, 41 NRC 281, 305 (1995).
101 10 C.F.R. § 2.309(f)(1)(v), (vi).
NMFSs implementing regulations for the ESA or sufficient factual assertions. Moreover, because the Staff is not required to conduct a formal consultation under the ESA with NMFS for the Pilgrim license renewal application, the Petitioners claim that the Staff must await a response from NMFS is immaterial.
B. The NRC Complied With The Magnuson-Stevens Act With respect to the MSA, the Petition alleges, in relevant part, that:
The NRC staff has failed to comply with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) of 1976, 15 U.S.C.S. §§ 1801102 et seq. and implementing regulations at 50 C.F.R. 600.905 et seq. with regard to the PNPS relicensing.103 Petitioners allege, without foundation, that there is no record of compliance with the MSA104 and that the NRC neither prepared an EFH Assessment105 nor submitted such assessment to the NMFS.106 Petitioners further allege that the NRC has unlawfully attempted to defer this assessment to the EPAs National Permit Discharge Elimination System (NPDES) permit renewal process under section 402 of the Clean Water Act.107 Moreover, Petitioners claim, NRC did not complete the consultation with NMFS required by the MSA.108 102 The correct citation for the Magnuson-Stevens Fishery Conservation and Management Act is 16 U.S.C. §§ 1801 et seq. 15 U.S.C.S. §§ 1801 refers to newspaper preservation.
103 Petition at 4. Petitioners also claim that [t]here is nothing in the EPA files or the NRC record to show than an EFH assessment will be done before that time [of license expiration]. Id. at 23. Id. at 5.
See 16 U.S.C. § 1855(b)(3); 50 C.F.R. § 600.920(e).
104 Petition at 30.
105 Id. at 30.
106 Id. at 12.
107 Id at 5. Petitioners claim that the NPDES process will not be complete by the time of license expiration. Id. at 28. Petitioners allege that the NRC may not renew the Pilgrim license until that process is completed under the MSA (Id. at 28) because nothing allows the EFH assessment to be performed after licensing, which NRC has attempted to do. Id. at 12.
108 Id. at 5.
But Petitioners do not demonstrate any failure by the NRC to comply with either the MSA or NMFS regulations implementing the MSA. The NRC Staff complied with MSA statutory requirements and NMFS implementing regulations by preparing an EFH assessment, submitting that assessment to NMFS, concluding the consultation process with NMFS, and documenting that process in the FSEIS.109 Accordingly, Petitioners claims alleging NRC non-compliance with the MSA are not admissible because they fail to show that a genuine dispute exists on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi).110 Nor do Petitioners show that the EPAs decision on the NPDES permit application is material to a decision that the NRC must make prior to renewing the license for Pilgrim under 10 C.F.R. § 2.309(f)(1)(iv).
- 1. The MSA and Implementing Regulations Section 305(b)(2) of the MSA requires all Federal agencies to consult with the NMFS on any proposed actions that may adversely affect EFH.111 NMFS implements these requirements in its regulations at 50 C.F.R. Part 600,112 and sets forth the procedures governing federal agencies consultation with NMFS pursuant to the requirements in section 305(b)(2) of the MSA.113 These regulations provide that agencies should consult with NMFS as early as practicable for any federal action that may adversely affect EFH, including renewals of licenses, and must provide a written assessment of the effects of that action on EFH.114 When NMFS 109 Pilgrim FSEIS, Appendix E.
110 10 C.F.R. § 2.309(f)(1)(vi).
111 16 U.S.C. § 1855(b)(3).
112 50 C.F.R. § 600.905 (These procedures address the coordination, consultation, and recommendation requirements of sections 305(b)(1)(D) and 305(b)(2-4) of the Magnuson-Stevens Act.).
113 50 C.F.R. § 600.920(a)(1)-(3).
114 50 C.F.R. § 600.920(a)(1)-(3),(e)(1-4). NMFS encourages agencies to coordinate this MSA consultation process where appropriate with the agencys other environmental review processes.
Consultation and commenting under sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act should be consolidated, where appropriate, with interagency consultation, coordination, and environmental review procedures required by other statutes, such as NEPA, the Fish and Wildlife Coordination Act, Clean Water Act, ESA, and Federal Power Act. 50 C.F.R. § 600.920(f)(1).
receives information that any proposal to be authorized by a federal agency will adversely affect any essential fish habitat, NMFS must recommend measures that can be taken by such agency to conserve that habitat.115 Generally, NMFS provides EFH conservation recommendations to the federal agency for actions that adversely affect EHF.116 The federal agency must provide a detailed response in writing, including a description of the measures proposed to mitigate, offset, or avoid the impacts or an explanation for not following the recommendations.117 Importantly, however, NMFS regulations do not require a federal agency to implement conservation recommendations where that agency does not have the statutory authority to implement those recommendations. Specifically, 50 C.F.R. § 600.925(a) affirms that NMFS will not recommend that State or Federal Agencies take actions beyond their statutory authority.118 Correspondingly, the NMFS regulations provide for situations where more than one agency may be responsible for an action. The regulations state that [f]ederal agencies may need to consult with NMFS separately if, for example, only one of the agencies has the authority to implement measures necessary to minimize adverse effects on EFH and that agency does not act as the lead agency.119 Thus, where the agency acting as the lead agency does not have the statutory authority to implement the conservation recommendations, the lead agency will prepare the EFH Assessment but NMFS will not provide them with conservation recommendations.120 Rather, the agency with the statutory authority to implement conservation recommendations will 115 16 U.S.C. § 1855(b)(4)(A).
116 50 C.F.R. § 600.925(a).
117 50 C.F.R. § 600.920(k).
118 50 C.F.R. § 600.925(a).
119 50 C.F.R. § 600.920(b).
120 50 C.F.R. § 600.925(a).
be responsible for consulting with NMFS on the implementation of any conservation recommendations.
- 2. Petitioners Contention Does Not Meet the Standards in 10 C.F.R. § 2.309(f)(1)
- a. NRC Completed the EFH Assessment Petitioners claim that the NRC neither completed an EFH Assessment121 nor submitted an EFH Assessment to NMFS.122 But these claims are without merit.
The NRC Staff fully complied with the requirements of section 305(b)(3) of the MSA and the NMFS implementing regulations and documented that compliance in the FSEIS.123 The NRC Staff sought guidance from NMFS on the MSA consultation requirement early on in the process,124 prepared the EFH Assessment, and submitted the completed EFH Assessment to the NMFS on December 8, 2006.125 On January 23, 2007, NMFS responded by letter to the NRC stating that NMFS had reviewed the NRCs EFH Assessment and acknowledging the NRCs request for EFH consultation with NMFS.126 NMFS noted the NRCs position that the EPA, and not the NRC, had sole authority over operational conditions and mitigation conditions affecting the EFH.127 Accordingly, NMFS stated that it determined that our issues of concern 121 Petitioners claim that NRC has not done an EFH assessment and that nothing allows the EFH assessment to be performed after licensing, which NRC has attempted to do. Petition at 30, 12.
Ironically, in response to one of JRWAs comments in the DSEIS, the NRC Staff specifically referred them to the EFH Assessment contained in Appendix E of the Pilgrim FSEIS based on NFMS guidance.
Pilgrim FSEIS, A-91, A-92.
122 Petitioners allege that the NRC admits that an EFH Assessment is required, but has not submitted to NMFS as of the date of this filing. Petition at 12.
123 Pilgrim FSEIS, Appendix E.
124 Pilgrim FSEIS at E-80.
125 Id. at E-38.
126 Id. at E-44.
127 In the EFH Assessment, the NRC stated: It should be noted that the NRC cannot impose mitigation requirements on the applicant. The Atomic Safety and Licensing Appeal Board, in the Yellow Creek case determined that EPA has sole jurisdiction over the regulation of water quality with respect to
relative to living marine resources and EFH would be most appropriately addressed through the EPAs NPDES permit renewal process.128 NMFS stated that it will not be providing the NRC with EFH conservation recommendations regarding the License Renewal for the Pilgrim Nuclear Power Plant.129 Rather, NMFS stated, NMFS will perform a detailed review of the proposed project within the NPDES permit renewal process and potentially provide EFH conservation recommendations at that time.130 NMFS affirmed in that letter that NMFS is concluding the EFH consultation process without providing conservation recommendations.131 The NRC published its Assessment of the Potential Effects on Essential Fish Habitat in Appendix E of the PNPS SEIS in July of 2007,132 concluding that the potential impacts of PNPS on federally managed species and their EFH in the vicinity of PNPS have been evaluated.133 In the FSEIS, the NRC stated that [t]he EFH Assessment has been submitted to the NMFS, and the EFH consultation has been concluded by letter dated January 23, 2007.134 Therefore, the the withdrawal and discharge of waters for nuclear power stations, and that the NRC is prohibited from placing any restrictions or requirements upon the licensees of these facilities with regards to water quality
[Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702, 712-13 (1978)]. E-132, n. a. NRC regulations at 10 C.F.R. § 51.10(c) also address the limitations on NRCs authority to regulate water issues. 10 C.F.R. § 51.10(c). Specifically, in accordance with section 511(c)(2) of the FWPCA, the NRC recognizes that responsibility for Federal regulation of nonradiological pollutant discharges into receiving waters rests by statute with the EPA. 10 C.F.R. § 51.10(c).
128 Pilgrim FSEIS at E-44.
129 Id. By letter dated May 25, 2001, NMFS issued a finding under 50 C.F.R. § 600.920(e) accepting EPAs environmental review process under the NPDES permit system to satisfy the EFH consultation requirements for those projects under EPAs direct authority. NMFS EPA Finding, available at http://sero.nmfs.noaa.gov/hcd/pdfs/efhdocs/20010525_NMFS_EPA_Findings.pdf.
130 Pilgrim FSEIS, E-44; 50 C.F.R. § 600.920(b).
131 Pilgrim FSEIS, E-45.
132 Id. NMFS implementing regulations permit and encourage an EFH Assessment to be contained in a NEPA document as long as it is clearly labeled as the EFH Assessment. 50 C.F.R. § 600.920(f)(1).
133 Id. at E-135.
134 Id. at A-114.
NRC stated, the EFH Assessment included in Appendix E is considered a final document.135 The NRC also explicitly stated in the FSEIS that the EPA, not the NRC, had the authority to implement any mitigation or conservation recommendations relevant to the EFH for Pilgrim.136 Moreover, the Petitioners allegations that the NRC did not complete the EFH Assessment are belied in part by the Petitioners own comments on the DSEIS referencing NRCs EFH Assessment.137 Contrary to Petitioners claims, the NRC completed the EFH Assessment in accordance with the requirements of the NFMS regulations, included analyses of the potential adverse impacts, set forth proposed conclusions, suggested proposed mitigation, and provided the EFH Assessment in the Pilgrim FSEIS.138 The NRC received a response from NMFS that confirmed that the consultation process under the MSA was concluded,139 and the NRC reiterated in the FSEIS that the consultation required by the MSA was complete.140 Consequently, the Petitioners claim that the NRC did not complete or submit an EFH Assessment fails to establish a genuine dispute under 10 C.F.R. § 2.309(f)(1)(vi).
- b. NMFS Reasonably Determined to Consider EFH Mitigation Through the EPAs NPDES Process for Pilgrim Because EPA Has Authority to Implement Those Measures Petitioners argue that the NRC unlawful[ly] postponed the EFH Assessment by simply passing the buck to EPA. 141 Essentially, Petitioners allege that the EFH assessment cannot be properly deferred to another agency proceeding (i.e., the EPA NPDES process) that will not be 135 Id.
136 Id. at E-132 n.a.
137 Id. at A-78, A-79.
138 Id. at E-80.
139 Id. at E-44.
140 Id. at A-114.
141 Petition at 32.
complete by June 8, 2012 because [t]he law is clear that the MSA requires an EFH assessment prior to relicensing.142 But Petitioners claims fail to establish a genuine dispute or raise a material issue. The NRC completed the EFH Assessment that Petitioners allege was not done and published it in the FSEIS as a final document. There was no postponement or deferral of the EFH Assessment to EPA; the NRC completed the EFH Assessment for the Pilgrim license renewal.
NMFS regulations implementing the MSA clearly provide that NMFS will not provide conservation recommendations to a lead agency that does not have the statutory authority to implement those recommendations; rather, NMFS will consult separately with the agency that does have such authority.143 On this basis, the letter from NMFS concluded the consultation, specifically referring to the NRCs position that the NRC does not have the authority to implement the conservation measures in question.144 Accordingly, NMFS did not provide NRC with conservation recommendations and concluded the consultation with the NRC while stating that it planned to further coordinate with the EPA during the NPDES process.145 Therefore, the NMFS letter of January 23, 2007, completed the NRCs obligations under the MSA.146 This result is consistent with the NMFS regulations as well as with the legal implications of an agency being unable to implement measures beyond its authority. The NRC clearly set forth its position that it does not have the statutory authority to implement conservation recommendations related to EFH, both in the EFH Assessment147 and in responses to 142 Id. at 28.
143 50 C.F.R. § 600.925(a); 50 C.F.R. § 900.920(b).
144 Pilgrim FSEIS, E-44.
145 Id. at E-44, E-45.
146 Id. at E-44.
147 Id. at E-132.
comments in the FSEIS, including responses to comments made by JRWA.148 For example, in response to a concern raised by JRWA about monitoring, the NRC explained that monitoring requirements are defined in the NPDES permit, which is issued by USEPA Region I and the NRC has no regulatory authority regarding the conditions set in the NPDES permit.149 Additionally, in Section A.2.5 of the SEIS addressing comments on Aquatic Ecology, including specific responses to comments submitted by JWRA, the NRC repeatedly made clear that EPA, not the NRC, had jurisdiction to impose the mitigation measures proposed by in EFH.150 Petitioners also appear to claim that the NRC also may not issue the license until the EPA acts on the Pilgrim NDPES permit.151 Petitioners allege that the fact that the EPA NPDES process will not be complete by the date of license expiration is material to the findings that NRC must make because the law is clear that the MSA requires an EFH assessment prior to relicensing.152 Petitioners claims fail to establish a material dispute because, as discussed above, the NRCs MSA process is complete and therefore there is a valid EFH assessment for Pilgrim.
Petitioners point to nothing in the MSA or NMFSs regulations that would require the NRC to wait either for NMFS to complete its separate review of the Pilgrim NPDES permit or for NMFS and the EPA to coordinate implementation of mitigation measures. Rather, NMFS reasonably acted in accordance with its own regulations in determining to implement EFH mitigation measures for Pilgrim through a separate process in light of the NRCs lack of authority to implement those measures. As the Supreme Court has noted, in another context, it would be 148 Id. at A-68.
149 Id. at, A-87.
150 Id. at A-87, A-81, A-89, A-103.
151 Id. at 28-29.
152 Id. at 28.
incongruous to require an agency to delay final action until other agencies with authority to implement mitigation measures act.153 Therefore, this portion of Petitioners claim is incorrect as a matter of law.
In addition, the existing NPDES permit continues in force.154 As Petitioners acknowledge, the EPA, in conjunction with the State of Massachusetts, retains authority for the issuance of the NPDES permit.155 The 1991 NPDES Permit for PNPS is currently in timely renewal under Federal law156 and state law,157 which allow an applicant for a permit to continue operations under its existing permit until the agency responsible for issuing the permit finally determines the application.158 Consequently, Petitioners Contention does not show a genuine dispute under 10 C.F.R
§ 2.309(f)(1)(vi) because the existing NPDES permits continue in force under the timely renewal provision and NMFS acted within its regulatory authority when it determined to pursue mitigation measures through the EPAs NPDES permit process instead of the NRCs license renewal process.159 153 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352-53 (1989).
154 As the Petitioners recognized, the NPDES permit has been administratively extended.
Affidavit of Anne Bingham, at 2 (March 8, 2012) (ADAMS Accession No. ML12068A264).
155 10 C.F.R. § 51.10(c); Petition at 25.
156 5 U.S.C. § 558(c); 40 C.F.R. § 122.6(a).
157 314 C.M.R. § 3.09. Massachusetts state law provides a timely renewal provision similar to the federal timely renewal provision in the Administrative Procedure Act. Id.
158 5 U.S.C. § 558(c). The D.C. Circuit explicitly approved EPAs implementation of the timely renewal provision of the NPDES permitting program. Natural Resources Defense Council v. EPA, 859 F.2d 156, 211-216 (1988).
159 Petitioners further allege that Entergy has also flouted the legal mandates of the MSA because it is Entergys position either that it is entitled to a license without complying with the MSA, or the EFH obligations can be deferred to the NPDES permitting process. Petition at 32. But the MSA does not apply to private applicants. By its own terms, the consultation requirement in section 305(b)(4) applies only to Federal agencies. 16 U.S.C. § 1855(b)(2) (Each Federal agency shall consult with the Secretary with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat identified under this chapter. (emphasis added)).
C. The NRC Fully Complied With the National Environmental Policy Act
- 1. The FSEIS Contains the Information Petitioners Allege is Missing Petitioners allege that as a matter of law, the PNPS EIS is incomplete because it does not contain legally required information.160 Specifically, Petitioners allege, [t]he failure to complete the ESA section 7 process and the MSA EFH assessment, and disclose and respond to expert NMFS opinions concerning the adverse impacts on marine aquatic species and habitat of PNPSs relicensing renders the PNPS EIS fatally deficient and contrary to NEPAs hard look requirement.161 But Petitioners claims fail because the NRC already included the required information regarding the MSA consultation process and the ESA section 7 consultation in the FSEIS. The NRC completed the EFH Assessment and the BA for section 7 of the ESA and included its analyses and documentation of compliance in Appendix E of the FSEIS.162 To the extent that Petitioners argue that the NRC lacks required data in the FSEIS from either the NMFS consultation or the ESA section 7 consultation, this claim is not supported.163 The NRC provided and evaluated proposed mitigation measures in the EFH Assessment and analyzed the environmental impacts of such measures.164 The NRCs obligations under NEPA extend only to analyzing the environmental impacts of the mitigation measures under the authority of 160 Petition at 30.
161 Id. at 31.
162 See supra at section II.A and B.
163 Petition at 33, 49; Petitioners allege, It is JRWAs position that NRCs relicensing record lacks scientific data sufficient to assess the impact on Cape Cod Bay from PNPS operations. Affidavit of E.
Pine duBois at 7 (March 8, 2011) (ADAMS Accession No. ML12068A184) (duBois Affidavit).
164 Pilgrim FSEIS, Appendix E.
the EPA,165 not implementing those measures. The NRC fully completed that obligation in the EFH Assessment.
- 2. The Record of the ESA Process Does Not Have To Be in the EIS Petitioners allege that [o]nly after completion of the ESA section 7 process can a federal agency determine whether and in what manner to proceed with the action, and a record of the process must be included in the agencys NEPA EIS.166 Petitioners also allege that section 7 consultation should be completed at the time the Final EIS is issued.167 Petitioners finally contend that [o]nly after completion of the ESA section 7 process can a federal agency determine whether and in what manner to proceed with in action, and a record of the process must be included in the agencys NEPA EIS.168 But Petitioners claim improperly mixes the requirements of section 7 of the ESA with NEPA.169 The NRC fully complied with both NEPA and section 7 of the ESA. As the Petitioners themselves acknowledge, there is no requirement that an agencys compliance with section 7 of the ESA be necessarily included in an EIS.170 Rather, an agency must simply document its compliance with the ESA. Petitioners identify no legal requirement to support their allegation that a record of the process must be included in the agencys NEPA EIS.171 165 10 C.F.R. § 51.10(c).
166 Petition at 29.
167 Id. at 15.
168 Id. at 29.
169 The requirements for agency action are different under NEPA and the ESA. See National Assn of Home Builders v. Defenders of Wildlife, 551 US 644, 668 (2007) (noting that section 7 of the ESA, unlike NEPA, imposes a substantive (and not just a procedural) statutory requirement).
170 The Petition itself cites no legal requirement for coordination and actually notes that relevant statutes and case law indicate that ESA § 7 consultation may be coordinated with preparation of an EIS under NEPA. Petition at 15 (citing 16 U.S.C. § 1536(c)(1); Sierra Forest Legacy v. United States, 652 F.Supp. 2d 1065, 1071 (N. D. Cal. 2009)).
171 Id. at 29.
Although agencies such as the NRC often coordinate the ESA section 7 consultation with the NEPA process, such coordination is not required. Indeed, the NRC did coordinate the 2006 BA with its NEPA process and documented that compliance in Appendix E of the FSEIS.
The NRC only recently issued the supplemental BA because the species in question, the Atlantic sturgeon, will only be listed as threatened in the spring of 2012.172 However, there is no requirement for the NRC to incorporate the supplemental BA into the FSEIS. Rather, the supplemental BA is contained in the NRCs record of decision and meets the requirements of section 7 of the ESA.173 Nor do Petitioners show that the supplemental BA, which found no effect on listed species, is new and significant information such as to require supplementation of the FSEIS. Accordingly, Petitioners fail to establish a material dispute under 10 C.F.R. § 2.309(f)(1)(vi) and the contention is inadmissible.
- 3. Petitioners Do Not Allege New and Significant Information Petitioners allege that their proffered evidence, which appears to consist of their allegations regarding the status of NRCs compliance with the MSA and ESA section 7, constitutes new and significant information under NEPA whose environmental implications must be considered before the NRC may make a decision that approves license renewal for PNPS.174 Therefore, Petitioners contend, the NRC must supplement the PNPS EIS to include information from the ESA and MSA processes.175 But Petitioners unsupported contention alleging that the NRC has not completed the MSA and ESA section 7 consultation 172 77 Fed. Reg. at 5,880.
173 Supplemental BA, Enclosure 3.
174 Id. at 34-35. Petitioners state that they have offered significant new information on the status of compliance with ESA and EFH, the most recent, a letter dated February 29, 2012, from NRC, newly acknowledging that compliance with ESA § 7 has not occurred. Petition at 58.
175 Id. at 34-35.
process does not constitute new and significant information warranting the supplementation of the FSEIS under NEPA.
A supplemental EIS must be prepared only when the new information indicates that the project will affect the quality of the human environment in a significant manner or to a significant extent not already considered.176 Accordingly, the Commission has found that the duty to supplement arises only where the new information would paint a seriously different picture of the environmental impact of the proposed project.177 The NRC completed the EFH Assessment and concluded its consultation under the MSA. Similarly, the NRC completed the 2006 BA and concluded its consultation under section 7 of the ESA.178 Both of these documents and the accompanying analyses were included in and incorporated into the FSEIS. Therefore, the Petitioners do not identify any new information regarding these consultations, much less any significant information, that must be included in the FSEIS.
Petitioners also fail to show the existence of any new and significant information in the supplemental BA requiring supplementation of the 2007 FSEIS. The NRC recently completed the supplemental BA for the Atlantic sturgeon, which will only be listed as of April 2012.179 Accordingly, the supplemental BA is not included in the 2007 FSEIS. However, the supplemental BA found no effect on the Atlantic sturgeon. A finding of no effect cannot paint a seriously different picture of the environmental impact180 or affect the quality of the 176 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373-74 (1989).
177 Hydro Resources (P.O. Box 15910 Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 52 (2001).
178 See supra at section II.A.
179 77 Fed. Reg. at 5,880.
180 Hydro Resources, CLI-01-04, 53 NRC at 52 (emphasis in original).
human environment in a significant manner or to a significant extent not already considered.181 Moreover, as the Supreme Court pointed out in Marsh v. Oregon, to require supplementation of the EIS every time any new information arose would render agency decision making intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.182 The Petition makes no showing that the supplemental BA provides information that is so significant that it paints a seriously different picture of the environmental impacts. Thus, the Petitioners do not establish a genuine dispute as required by 10 C.F.R. § 2.309(f)(1)(vi).
- 4. The Alternatives Analysis Need Not Be Supplemented Petitioners argue that the PNPS EIS must contain a detailed statement . . . on . . .
alternatives to once-through cooling that incorporates the new ESA and MSA information.183 Petitioners allege that [t]his supplementation must ensure that new information about the endangered and threatened species and essential fish habitat impacts of once-through cooling at PNPS, and that the alternatives are analyzed in comparative form.184 But Petitioners do not identify how any of the alleged information provided is new, nor do Petitioners show with any specificity that any of the information put forth would affect the analysis of alternatives provided in the FSEIS. Moreover, as discussed above, the Pilgrim FSEIS thoroughly considered the impacts of renewing the Pilgrim operating license on EFH, listed species, and critical habitat.
Consequently, the Petitions allegations regarding the status of the NRCs compliance with the ESA and the MSA does not present information that shows that the NRC did not comply with the requirements of NEPA. Petitioners do not establish a genuine dispute with the 181 Marsh v. Oregon, 490 U.S. at 374.
182 Id. at 373.
183 Petition at 29.
184 Id.
application or identify an issue material to the findings that the NRC must make under 10 C.F.R.
§ 2.309(f)(1)(iv) and (vi). The Commission should deny the contention.
III. Requirements for the Admission of Non-Timely Filings and Contentions A. Applicable Legal Standards When a motion to reopen the record raises a new issue, the Commissions regulations indicate that it must satisfy the criteria for nontimely contentions in 10 C.F.R. § 2.309(c).185 Nontimely contentions may only be entertained following a determination by the Presiding Officer that a balancing of the eight factors in 10 C.F.R. § 2.309(c) weigh in favor of admission.186 The requirements for untimely filings and late-filed contentions are stringent.187 185 10 C.F.R. § 2.326(d). The Petition also addresses the factors for late filed contentions in 10 C.F.R. § 2.309(f)(2). Petition at 33-35. Under that section, a new contention may be admitted with leave if it is based on new information that is materially different from previously available information and is timely. As discussed below, to meet the requirements of 10 C.F.R. § 2.309(c)(1)(i), a petitioner must show that the information it relies on is new. As discussed below, Petitioners have not made that showing. See infra, at Section III.B.1. Therefore, the Petition also does not meet the requirements of 10 C.F.R. § 2.309(f)(2).
186 The eight factors listed at § 2.309(c)(1) are as follows:
(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/ petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/ petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/ petitioner's participation may reasonably be expected to assist in developing a sound record.
All eight factors must be addressed by the petitioner.188 The Commission has held that a petitioner has an iron-clad obligation to examine the publicly available documentary material with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention.189 While petitioners must show a favorable balance among the [eight] factors, good cause is given the most weight.190 Good cause has long been interpreted to mean that the information on which the proposed new contention is based was not previously available.191 To show good cause for late filing under 10 C.F.R. § 2.309(c)(1), "a petitioner must show that the information on which the new contention is based was not reasonably available to the public, not merely that the petitioner recently found out about it."192 If a petitioner cannot show good cause, the balance of the other factors must be compelling.193 Petitioners do not show good cause and do not show a favorable balance among the remaining factors. 194 Therefore, the Petition should be denied as untimely.
187 Oyster Creek, CLI-09-7, 69 NRC at 260. See also Nuclear Management Co., LLC. (Palisades Nuclear Power Plant), CLI-06-17, 63 NRC 727, 732 (2006).
188 Oyster Creek, CLI-09-07, 69 NRC at 260.
189 Northern States Power Co. (Prairie Island Nuclear Generating Plant), CLI-10-27, 72 NRC 481, 496 (2010).
190 Oyster Creek, CLI-09-07, 69 NRC at 261; Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115,125-26 (2009); Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-32, 62 NRC 813 (2005) (citing State of New Jersey (Department of Law and Public Safety), CLI-93-25, 38 NRC 289, 296 (1993)); Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 581 (2006).
191 Millstone, CLI-09-05, 69 NRC at 125-26.
192 Id. at 126 (emphasis in original).
193 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 565 (2005); Tennessee Valley Authority (Watts Bar Nuclear Unit 2), CLI-10-12, 71 NRC 319, 323 (2010).
194 Petition at 44. The Staff does not contest the Petitioners arguments regarding 10 C.F.R. § 2.309(c)(1)(ii)-(iv) requirements (Petition at 47-48) as Boards have previously found these criteria to be not particularly applicable given that they focus on the status of the requestor/petitioner seeking
B. Petitioners Do Not Meet the Late-Filing Standards of 10 C.F.R. § 2.309(c)
- 1. Petitioners Do Not Show Good Cause Petitioners contend that there is good cause for the late filing of the Contention because there has been new information, both in the form of new facts and new regulatory developments.195 But, the Commission has recently emphasized that [g]ood cause has long been interpreted to mean that the information on which the proposed new contention is based was not previously available.196 Although the Commissions regulations do not define timeliness, new or amended contentions and motions are generally deemed timely if filed within 30 days of the availability of the new information supporting the new or amended contention or motion to reopen.197 These timeliness requirements are not simply a matter of legal rules, but rather of practicality. As the Commission pointed out in Oyster Creek, [t]here simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new contentions at their convenience.198 admission to a proceeding (e.g., standing, nature of the requestor/petitioners affected interest). Vermont Yankee, LBP-06-14, 63 NRC at 581. Further, the Staff does not contest the Petitioners arguments on § 2.309(c)(1)(vi) (Petition at 49-50) because it has shown that its interests are not adequately represented by the other parties because there is no proceeding and therefore no existing parties. State of New Jersey (Department of Law and Public Safety's Requests Dated October 8, 1993), CLI-93-25, 38 NRC 289, 296 (1993); Millstone, CLI-05-24, 62 NRC at 556 (We agree with the Board that no other current parties could adequately represent those interests (sixth factor). There are no other parties because the instant adjudication was terminated.).
195 Petition at 45 (The only relevant event, as noted by Petitioners, on February 29, 2012 was the NRCs issuance of the 2012 supplemental BA.).
196 Millstone, CLI-09-05, 69 NRC at 125-26 (citing Diablo Canyon, CLI-08-1, 67 NRC at 6 (slip op); Comanche Peak, CLI-93-4, 37 NRC at 164-65; Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1764-65 (1982) (information in the public domain for six months did not establish good cause for late filing)).
197 See, e.g., AmerGen Energy Co., LLC. (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 669-70 n.44 (2008) (finding motion to reopen and add new contention filed within 30 days of new information timely); Oyster Creek II, CLI-09-7, 69 NRC at 288 (finding motion to reopen filed within 30 days of new information timely); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 485-68 (2008) (finding motion to reopen based on document that had been available for four months untimely); Prairie Island, CLI-10-27, 72 NRC at 496 (finding a contention untimely where information had been available for two months).
198 Oyster Creek, CLI-09-7, 69 NRC at 272.
Petitioners alleged new information is only information that the Petitioner recently discovered, not information that was not reasonably available to the public.199 First, Petitioners allege that the information on the status of compliance with the ESA and MSA is new information because federal regulators made repeated written statements in the record that the ESA section 7 and EFH processes were ongoing and the [p]etitioners reasonably assumed that the NRC had, in the intervening years between July 2007 and January 2012, completed the section 7 consultation process, and that the US EPA was, in fact, renewing the NPDES permit.200 However the NRC provided evidence in 2007 to show that these consultations had ended or were legally complete.201 Additionally, the fact that the NPDES renewal process is before the EPA has long been publicly available.202 Petitioners misconstruction of the statutory requirements for the ESA section 7 consultation and the MSA EFH Assessment, as detailed above in sections III.A and III.B, does not constitute new or materially different information that what was previously available.
In addition, Petitioners claim that the Contention was submitted in a timely fashion because it was filed within thirty days of the February 6, 2012 [date] of JRWAs letter to NMFS seeking information about ESA matters.203 But Petitioners misapply the standard. To be timely 199 Id.
200 Petition at 33, 34. Similarly, Petitioners allege that new information exists because the NRC admitted on February 29, 2012 that there [is] no ESA § 7 concurrence on the 2006 BA and the 2012 supplemental BA on Atlantic sturgeon, [and] it was revealed that there would be no EFH assessment before June, 2012, and river herring was designated a candidate species. Petition at 45.
201 Pilgrim FSEIS, Appendix E; A-114.
202 FSEIS, Appendix E.
203 Petition at 35. Moreover, the Petitioners state that they contacted the EPA in the spring of 2011 to determine where the NPDES process was in review and received the existing permit, but did not ask to review the file until December of 2011 and did not file this Petition until March of 2012. duBois Affidavit at 8.
filed under 10 C.F.R. § 2.309(f)(2)(iii), contentions must be filed within 30 days of the availability of the new information, not within 30 days of the Petitioners discovery of that information.204 Further, Petitioners argue that because the NMFS did not announce that the river herring is a candidate species until November 2, 2011, the contention is timely.205 But, by Petitioners own admission, this information was publicly available for more than four months before the Petitioners filed this contention and thus was previously available.
Last, Petitioners also assert that on February 29, 2012, the NRC admitted the ESA section 7 process for the 2006 BA and the 2012 BA is incomplete.206 Although the NRC 2012 supplement to the BA is recent, Petitioners do not show that the information in the 2012 BA is different than information that was previously available. The 2012 BA supplement found that there would be no effect on the Atlantic Sturgeon, and therefore, there was no material change in the information regarding the impact on the Atlantic Sturgeon.207 Thus, the information on which the Petitioners rely as new information is not the supplemental BA but rather the listing of the Atlantic Sturgeon as threatened. But, NOAA publicly announced it would list the Atlantic Sturgeon as threatened on January 31, 2012, more than 30 days before the Petitioners filed.208 Thus, Petitioners do not show that the information they rely on is new.209 Consequently, the Petition does not establish good cause and Petitioners must show that a compelling 204 Likewise, Petitioners claim that they have only recently discovered that, in fact, EPAs NPDES renewal process is not ongoing as represented by the NMFS 2007 letter deferring the EFH assessment to that process and will not be done prior to relicensing does not constitute new information. Petition at 33.
205 Id. at 33.
206 Petition at 33.
207 Compare Pilgrim Supplemental BA at 2 with Pilgrim FSEIS at 2-86.
208 NOAA lists five Atlantic sturgeon populations under Endangered Species Act, (Jan. 31, 2012) available at http://www.nero.noaa.gov/nero/hotnews/atlsturgeondps/ (NOAA List).
209 Petitioners also contend that the NRC should be estopped from objecting to the untimliness of their filing or that the provision of erroneous information from the Staff serves to excuse their untimely filing. Petition at 45-46 ( citing Wisconsin Public Service Corporation (Kewaunee Nuclear Power Plant),
balance of the remaining factors in 10 C.F.R. § 2.309(c). 210 As discussed below, Petitioners do not make that showing.
- 2. The Balance of the Other Factors Is Not Compelling Petitioners allege that there are no other means available to Petitioners to protect their interests in ensuring that marine and freshwater species and their habitats obtain the protections of the ESA, MSA, and the review provided by NEPA.211 But, as the Petitioners acknowledge, their concerns regard the EFH mitigation information will be addressed by NMFS in conjunction with EPA and the State of Massachusetts during the NPDES permit renewal process.212 The NRCs proceeding cannot resolve Petitioners concerns because the NRC lacks the statutory authority to implement these measures, so in fact, other means are both the best forum and the only appropriate forum to address Petitioners concerns. Therefore, Petitioners do not show that this factor weighs in favor of allowing intervention.
Petitioners contend that their contention will not broaden the issues beyond the narrow scope of what NRC was required to do anyway and that the benefits of allowing their contention to be litigated outweighs any potential disadvantage with regard to broadening the issues or delaying the proceeding.213 However, the admission of Petitioners contention will LBP-78-24, 8 NRC 78, 81-82 (1978); Consolidated Edison Company (Indian Point Station, Unit No. 2),
LBP-82-1, 15 NRC 37, 39-40 (1982); and Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-82-117B, 16 NRC 2024, 2027 (1982)). But these claims rest on licensing board opinions that are clearly distinguishable from this case or undermine Petitioners position.
Kewaunee, LBP-78-24, 8 NRC at 81-82 (noting that estoppel was appropriate when party was not represented by counsel and the NRC Staff allegedly provided misleading statements); Indian Point, LBP-82-1, 15 NRC at 46-47 (noting that parties cannot establish good cause by relying on another proceeding to protect their interests); Palo Verde, LBP-82-117B, 16 NRC at 2026 (clear statements from the NRC do not establish good cause). None of these cases establishes good cause.
210 Millstone, CLI-05-24, 62 NRC at 565.
211 Petition at 49 (addressing 10 C.F.R. 2.309(c)(1)(v)).
212 Id. at 49 (noting that the extent of this harm and mitigation must be evaluated by NMFS biologists, where conservation measures are the responsibility of the EPA).
213 Id. at 51-53.
necessarily broaden the issues and delay the proceeding because there is currently no proceeding. Here, contentions have been fully litigated or dismissed, the record closed, and the proceeding terminated. As the Commission held in Millstone, [t]he grant of the petition at this late stage of the adjudicatory proceeding would necessarily broaden the issues (there are now none) and delay the proceeding (originally closed last December). Indeed, the petition would require reopening a closed administrative adjudicatory record.214 Moreover, the Petitioners claim that the petition will not delay the proceeding because there is ample time for NRC Staff and NMFS to undertake the assessments and make the determinations required . . . and supplement and revise the PNPS EIS.215 But, the Commission already rejected a request for suspension of this proceeding, noting that further delay would undermine fair and efficient decision-making.216 Therefore, this factor heavily weighs against admission of the Petition because it would both broaden and delay the proceedings and require reopening a closed adjudicatory record.217 Petitioners claim that the record will be incomplete if they are not allowed to participate.218 But the Petitioners make no showing that their participation will assist in developing a sound record, and, thus, the Commission weighs this factor heavily against intervention. The sound record addressing the NRC compliance with the ESA, MSA, and 214 Millstone, CLI-05-24, 62 NRC at 566.
215 Petition at 51.
216 Pilgrim, CLI-12-06, 75 NRC __, __ (slip op. at 30) citing 5 U.S.C. § 558(c) (requiring that an agency set and complete proceedings on license applications with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time) and Vermont Yankee, CLI-07-3, 65 NRC at 22 ([W]hatever the ultimate fate of [Massachusetts] new information claim, admitting [Massachusetts] contention for an adjudicatory hearing is not necessary to ensure that the claim receives a full and fair airing.).
217 Millstone, CLI-05-24, 62 NRC at 566-67.
218 Petition at 53.
NEPA already exists.219 Petitioners failure to bring forth any colorable legal claims of non-compliance by the NRC with these statutes means that their participation may not be reasonably expected to assist in developing a sound record.220 Moreover, Petitioners claims that their contention, documentation, and affidavits provide the information that is required to be produced by NMFS and required to be in the record are unfounded.221 As to the latter point, the NRC completed the EFH Assessment and concluded the MSA consultation with NMFS; that information is in the record, and Petitioners contention shows no further legal requirement. As to Petitioners claim that their documentation provides information required to be produced by NMFS, their documentation is not required and any conservation recommendations from the NMFS must be provided to the EPA, not the NRC, under the NPDES permitting process.222 Petitioners also fail to show that their contention contains any new and significant information that would require supplementation of the FSEIS or any further development of the record.223 In balancing the late-filed contention factors, the Commission grants considerable weight to the ability of the petitioner to contribute to a sound record.224 But in order to comply with 10 C.F.R.
§ 2.309(c)(1)(viii), a petitioner must provide more than vague assertions that it will be able to assist in developing the record.225 Petitioners contention does not set forth any new legal 219 See supra at section II.
220 10 C.F.R. § 2.309(c)(1)(viii).
221 Petition at 53.
222 Id., see supra at section II.B.
223 Petition at 53.
224 Consumers Power Co. (Midland Plant, Units 1 and 2) LBP-82-63, 16 NRC 571, 577 (1982)
(citations omitted), citing South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1),
ALAB-642, 13 NRC 881, 887-91 (1981). See also Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246-47 (1986).
225 Watts Bar, CLI-10-12, 71 NRC at 326.
requirements nor does it provide any substantive information that must be added to the record.
Therefore, this factor weighs heavily against admission of the petition.
Consequently, Petitioners do not meet the standard for late-filed petitions in 10 C.F.R. § 2.309(c) because Petitioners do not demonstrate good cause, the most important factor, and the remaining factors do not weigh in favor of intervention. None of the factors which the Commission gives great weight, including the factors outlined in 10 C.F.R. § 2.309(c)(1)(v), (vii),
and (viii) weighs in favor of admission of the Petition, because the Petition will delay the proceeding, there are other means available to protect Petitioners interests, and the Petitioners participation may not be reasonably expected to assist in developing a sound record.
IV. The Petition Does Not Meet The Reopening Standards In addition to meeting the normal contention admissibility requirements of 10 C.F.R. § 2.309(f)(1) and the timeliness requirements in 10 C.F.R. § 2.309(c), a motion to reopen the record to admit a new contention must meet all of the requirements in section 2.326.226 The motion to reopen must be timely, must address a significant safety or environmental issue, and it must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered in the first instance.227 One or more affidavits that show the motion to reopen meets the above criteria must accompany the motion under 10 C.F.R. § 2.326(b). Each affidavit must contain statements from "competent individuals with knowledge of the facts alleged" or experts in disciplines appropriate to the issues raised.228 Moreover, the moving papers must be strong enough, in the light of any opposing filings, to avoid summary disposition.229 The Commission has previously held that [t]he burden of 226 Oyster Creek, CLI-08-28, 68 NRC at 673.
227 10 C.F.R. § 2.326(a)(1)-(3); Oyster Creek, CLI-08-28, 68 NRC at 673.
228 10 C.F.R. § 2.326(b). See also AmerGen Energy Co., LLC. (Oyster Creek Nuclear Generating Station), CLl-09-7, 69 NRC 235, 286-291 (2009).
229 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005).
satisfying the reopening requirements is a heavy one, and proponents of a reopening motion bear the burden of meeting all of [these] requirements.230 Thus, [b]are assertions and speculation do not supply the requisite support[, and a] mere showing of a possible violation is not enough.231 The Petition does not demonstrate that it meets any of the requirements in that section. Therefore, the Commission should deny the Petition under section 2.326.
A. Timeliness Under 10 C.F.R. § 2.326(a)(1), a motion to reopen a closed record must be timely. As discussed above, the claims in the Petition are not timely.232 Nonetheless, the regulation provides an exception to this rule when the motion to reopen raises an exceptionally grave issue.233 The Commission has found that an exceptionally grave issue is one that calls into question the safety of the licensed activity.234 The Commission anticipates that this exception will be granted rarely and only in truly extraordinary circumstances.235 Conclusory language is insufficient to demonstrate an exceptionally grave issue.236 Rather, a proponent of reopening must explain how the motion presents an exceptionally grave safety or environmental issue.237 Petitioners allege that their claims raise an exceptionally grave issue that must be addressed prior to relicensing.238 Petitioners explain, the contention alleges that preparation of 230 Oyster Creek, CLI-09-7, 69 NRC at 287 (citations omitted, alteration in original).
231 Id. (citations omitted, first alteration in original).
232 See supra at section III.
233 10 C.F.R. § 2.326(a)(1).
234 Hydro Resources, Inc., CLI-00-12, 52 NRC 1, 5 (2000).
235 51 Fed. Reg. at 19536.
236 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 NRC __, __ (Sep. 27, 2011) (slip op. at 14 n.44).
237 Millstone, CLI-09-05, 69 NRC at 125 n. 51.
238 Petition at 37.
relevant information required by the ESA and MSA [has] not been completed and only through the evidence proffered in connection with Petitioners contentions that this information will be made available to [the] public.239 Petitioners support this claim by citing to the policies Congress sought to further in enacting the ESA, MSA and NEPA.240 These claims fail to establish an exceptionally grave issue for a number of reasons.
First, the claims do not raise an issue that calls into question the safety of Pilgrim.241 They do not even allege that the renewing the Pilgrim operating license will result in a substantial, unanalyzed environmental impact. Rather, these claims question the NRCs procedural compliance with environmental statutes, which does not raise an issue that shows truly grave consequences. Moreover, as discussed above, the Petitioners have not shown with any precision what type of information admission of its contention may yield.242 Second, the Petitioners have not shown how their allegations otherwise raise an exceptionally grave issue here. While the NRC Staff agrees that Congress enacted the ESA, MSA, and NEPA to protect important environmental interests, Petitioners have not attempted to demonstrate how those interests would be harmed by renewing the Pilgrim operating license.
Rather, Petitioners only assert that failure to comply with these statutes in the [Pilgrim]
relicensing proceeding is an exceptionally grave issue. 243 This statement is precisely the type of conclusory assertion that the Commission has previously indicated does not raise an 239 Id. at 36-37.
240 Id. at 36.
241 Hydro Resources, Inc., CLI-00-12, 52 NRC at 5.
242 See supra at section II.
243 Petition at 36-37.
exceptionally grave issue.244 Therefore, the Petition does not meet the requirements of 10 C.F.R. § 2.326(a)(1).
B. Significance In addition, a motion to reopen must also address a significant safety or environmental issue.245 [W]hen a motion to reopen is untimely, the § 2.326(a)(1) exceptionally grave test supplants the § 2.326(a)(2) significant safety or environmental issue test.246 As discussed above, the claims in the Petition are untimely and do not raise an exceptionally grave issue.247 Therefore, these portions of the Petition do not meet the requirements of 10 C.F.R. § 2.326(a)(2).
Moreover, even if the Petitioners had raised their claims in a timely fashion, they also do not allege a significant issue under section 3.236(a)(2). For environmental issues, the Commission has found that the standard for showing significance to reopen a closed record is the same as the standard for supplementing an EIS.248 In both instances, the proffered information must paint a seriously different picture of the environmental landscape.249 Because the Petitioners have not shown that any of the information supporting their new contention presents a seriously different view of the environmental impacts of renewing the Pilgrim license, none of the claims in the Petition meet the normal significance test under 10 C.F.R. § 2.326(a)(2).250 244 Vogtle, CLI-11-08, 74 NRC at __ (slip op. at 14).
245 10 C.F.R. § 2.326(a)(2).
246 Vogtle, CLI-11-08, 74 NRC at __ (slip op. at 14 n.44).
247 See supra at sections III, IV.A.
248 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 29 (2006).
249 PFS, CLI-06-03, 63 NRC at 29 (emphasis in original).
250 See supra at section II.C.
C. Materially Different Result Under 10 C.F.R. § 2.326(a)(3), a motion to reopen a closed record must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.251 One board has explained that under this standard [t]he movant must show that it is likely that the result would have been materially different, i.e., that it is more probable than not that [the movant] would have prevailed on the merits of the proposed new contention.252 The Commission has found a claim that simply states that new information contradicts some of the Boards factual findings, and then states that this prong of the reopening test is met . . . falls far short of meeting § 2.326(a)(3)s requirements.253 Petitioners contend that they meet this standard because if they prevail the ESA section 7 consultation process would be complete, the record would discuss the river herring, there would be an EFH assessment, and the FSEIS would reflect these developments.254 But, the NRC Staff has demonstrated above that the ESA consultation process is complete, the NRC is not required to consider the river herring, there is an EFH assessment, and the FSEIS adequately addresses these topics.255 Therefore, Petitioners have not shown how prevailing on their contention could lead to a different result.
Moreover, Petitioners have not attempted to show how they would be likely to prevail on their claims. Rather, Petitioners simply allege that a different result would have been likely.256 But, the Commission has already held that such a conclusory approach to meeting the 251 10 C.F.R. § 2.326(a)(3) (emphasis added).
252 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-10-19, 72 NRC 529, 549 (2010).
253 Oyster Creek, CLI-09-7, 69 NRC at 290-91 (internal quotations omitted).
254 Petition at 37.
255 See supra at section II.
256 Petition at 37.
reopening standards falls far short of meeting that sections requirements.257 As a result, the Petitioners have also not met the third prong of the reopening criteria.
D. Affidavit Finally, in order to reopen the record, a petitioner must support its request with an affidavit from an expert.258 Each of the criteria [of 10 C.F.R. § 2.326(a)] must be separately addressed, with a specific explanation of why it has been met.259 None of the affidavits Petitioners submitted address the criteria for reopening the record and therefore the support for the Petition in the affidavits is facially defective. As a result, Petitioners have also not met the requirements in 10 C.F.R. § 2.326(b).
CONCLUSION The Commission should deny Petitioners request to reopen the record and submit a new contention. As discussed above, the claims in the Petition are based on incorrect readings of relevant statutes and regulations. Consequently, they do not raise an adequately supported, material dispute. Moreover, the claims are untimely and do not meet the high Commission standards for reopening the record.
/Signed (electronically) by/ Executed in Accord with 10 CFR 2.304(d)
Maxwell C. Smith Lauren Woodall Counsel for NRC Staff Counsel for NRC Staff 257 Oyster Creek, CLI-09-7, 69 NRC at 290-91 (internal quotations omitted).
258 10 C.F.R. § 2.326(b).
259 Id.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR GENERATION )
COMPANY AND ENTERGY NUCLEAR ) Docket No. 50-293-LR OPERATIONS, INC. )
)
(Pilgrim Nuclear Generating Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS PETITIONS FOR LEAVE TO INTERVENE AND MOTIONS TO REOPEN THE RECORD have been served upon the following by the Electronic Information Exchange this 19th day of March, 2012:
Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail:
E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov Sheila Slocum Hollis Duane Morris LLP Terence A. Burke, Esq.
505 9th St., NW, Suite 1000 Entergy Nuclear Washington, DC 20004 1340 Echelon Parkway E-mail: sshollis@duanemorris.com Mail Stop: M-ECH-62 Jackson, MS 39213 E-mail: tburke@entergy.com
Mary Lampert David R. Lewis, Esq.
148 Washington Street Paul A. Gaukler, Esq.
Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Town Manager Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.
668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Richard R. MacDonald Matthew Brock Town Manager Assistant Attorney General 878 Tremont Street Commonwealth of Massachusetts Duxbury, MA 02332 One Ashburton Place E-mail: macdonald@town.duxbury.ma.us Boston, MA 02108 Martha.Coakley@state.ma.us Margaret Sheehan Matthew.Brock@state.ma.us 61 Grozier Road Cambridge, MA 02138 Anne Bingham E-mail : meg@ecolaw.biz 78A Cedar St.
Sharon, MA 02067 Email:annebinghamlaw@comcast.net
/Signed (electronically) by/
Maxwell C. Smith Counsel for NRC Staff Dated at Rockville, Maryland this 19th Day of March 2012